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to know, the law: they are not sworn to decide the law; they a reform of humble aspect which seems to us nevertheless to are not required to decide the law. It is the duty of the promise greater benefits to the public than many more judge, in all cases of general justice, to tell the jury how to do ambitious schemes. Let the use of that ominous phrase, “it is right, though they have it in their power to do wrong, which is a all a question of intention," and of all its equivalents, be matter entirely between God and their own consciences." It utterly interdicted to her Majesty's judges. This reflection has appears that in the United States the question was once raised been suggested to us by a case (In re Tanqueray-Willaume & whether this rule applies in criminal cases, but it was Landau) which was decided last week by the Court of Appeal. unhesitatingly decided that it did; and Mr. Justice STORY, The principal question at issue was the old one, whether a in one of the finest of his judgments, laid it down that direction to pay a testator's debts, accompanied by a devise to it is “the most sacred constitutional right of every party the executors, creates a charge of the debts upon the realty. Mr. accused of a crime, that the jury should respond as to the facts, Justice Kay had held that in this case no such charge was and the court as to the law. It is the duty of the court to created, upon the ground that the executors, though taking instruct the jury as to the law; and it is the duty of the jury to the legal estate as joint tenants, took unequal interests as follow the law as it is laid down by the court. This is the right beneficiaries. This decision has just been reversed by the Court of every citizen, and it is his only protection.... Every of Appeal, who have gone a long way towards laying down person accused as a criminal has a right to be tried according to the general rule, that a direction to pay debts coupled with any the law of the land, the fixed law of the land ; and not by the law devise whatever, whether beneficial or not, to the executor or as a jury may understand it, or choose, from wantonness, ignorance, executors jointly, will create a charge upon the realty for the or accidental mistake, to interpret it” (United States v. Battiste, 2 payment of the debts. We quite think that the step is in the Sumn. 243). It would be difficult to state more forcibly the right direction; but it is remarkable that the Master of the Rolls reasons why in criminal cases juries should not follow the should, according to the report, have seemed to think that he example of the Bristol wiseacres.
was only following the opinion expressed by Mr. Justice FRY in the case of Bailey v. Bailey (27 W. R. 909, L. R. 12 Ch. D.
268). That opinion is, except as regards the sentence cited by the A RECENT CASE of alleged personation suggests an inquiry as Master of the Rolls, somewhat nebulous; reducing (or rather, to what is the punishment for the offence. It will be found that, expanding) the whole matter to a “ question of intention” in a although obtaining property - by false and deceitful personation way which leaves a wider scope even than usual for mere guesswas always a misdemeanor at common law, punishable by fine ing. We think it is to the public advantage that Mr. Justice and imprisonment (2 East P. C., c. xx., s. 5), and although Kay's decision should have been overruled, but we also think special frauds of this description-e.g., the personation of soldiers that his decision accords at least as well with Mr. Justice Fry's (2 Will. 4, c. 53, s. 49) or sailors (11 Geo. 4, & 1 Will. 4, c. 20, opinion in Bailey v. Bailey as with that of the judges who over8. 84) to obtain their pay; of stockholders to receive their ruled him. The court also decided that, unless twenty years dividends (24 & 25 Vict. c. 98, s. 3); of masters to give false have elapsed since the testator's death, an intending purchaser characters to servants (32 Geo. 3, c. 56), and of voters at parlia- cannot question the authority of the executor to sell, upon the mentary, municipal, and school board elections, have been made ground that a charge for the payment of debts must be presumed grievous, and in most cases felonious, offences from time to time, to have been satisfied hy the debts having been paid. there was no general statute upon the subject until the False Personation Act, 1874 (37 & 38 Vict. c. 36), was passed “ to render personation, with intent to deprive any person of real estate or other property, felony." This statute, which was passed after, THE LAW SOCIETY'S COMMITTEE ON and probably suggested by, the case of Reg. v. Castro, otherwise ORTON, otherwise Sir ROGER TICHBORNE, Baronet, is a remark
LEGAL PROCEDURE. ably severe one. It enacts that “if any person shall falsely The committee appointed by the Incorporated Law Society has and deceitfully personate any person, ... with intent now drawn up and issued its report on the recommendations of fraudulently to obtain any land, estate, chattel, money, the Procedure Committee; and this carefully written document valuable security, or property, he shall be guilty of felony, affords a great contrast to the hasty and perfunctory utterance and upon conviction shall be liable" to penal servitude. some time since put forth by the council of the same society. As That the person personated is dead does not appear to make the the report of the Procedure Committee was recently commented offence less complete (see R. v. Brown, R. & R. 324, decided on in these columns at considerable length, it is unnecessary now on the statute relating to the personation of seamen). The to follow the present report through all its recommendations, peculiar severity of the Act of 1874 consists in making the most, and the most important, of which we find to be in harmony offence complete although no property be in fact obtained by the with the views we have already expressed ; but there are some personator, and although the property parted with was not parted points which it may be useful to draw attention to, partly because with from a belief in the personation. In this respect the new and valuable suggestions are made, and partly because some offence of personation differs materially from that of obtaining of the proposals advanced or accepted seem open to question. money, &c., under false pretences, which cannot be committed On the question of costs, we had pointed out that there were unless the money, &c., was actually obtained (24 & 25 Vict. c. two methods of diminishing them—one by diminishing the occa100, s. 91) by means of the false pretences (Reg. v. Mills, Dears sions for incurring them, the other by lessening the payment to & B. C. C. 205). Of course a personator may be indicted be made for the work done. The committee are of opinion that merely for obtaining money under false pretences (see R. v. “ the only proper, and, indeed, the only effectual, way to lessen Story, R. & R. 81), a course which the framers of the Act appear expense is to lessen the amount of work to be done." We are to have contemplated as possible, for section 2 provides that not prepared to dissent from this; but the committee do not ".nothing in this Act shall prevent any person from being pro- appear to have fully realized the desirable, if not necessary, conceeded against and punished under any other Act, or at common sequence that the occasions for incurring expenses should, if possible, law, in respect of an offence (if any) punishable as well under be diminished. On the contrary, under several of their recommenthis Act as under any other Act, or at common law.” The maxi-dations the occasions would be increased, They seem to have mum punishment, however, for merely obtaining money under narrowly escaped the idle proposal for the increase of perjury, by false pretenees is, by 24 & 25 Viet. e, 100, s. 91, as amended by requiring pleadings to be certified on oath, with the accompany27 & 28 Vict. c. 47, s. 2, five years' penal servitude, whereas ing privilege of orally cross-examining this sworn testimony; a obtaining money by false personation is, by the False Personation proposal which could only have the effect of introducing a trial of Act, 1874, punishable by penal servitude for life.
whether either party has a prima facie case as a preliminary skirmish to the trial whether he has a real case. They do, in fact, pro
pose that, in addition to pleadings, which they would retain as showIF THE RACE of law reformers is not extinct (and we see ing the parties what they are at issue upon, there should be a settling no reason to doubt their fecundity), we could suggest to them of issues before the judge to determine that question still further.
Yet it is almost notorious that such issues when actually settled not be by a separate summons, but by a reference of the original rarely give satisfaction, and that at the trial it is found that the par- summons to the judge by the master, they fail to notice that their ties and the judge have practically to re-draw them. It is supposed scheme compels the party either to elect on the spot whether he ihat this would " narrow the question actually disputed," and that will appeal, or else to make a fresh application to the master to * the settlement of issues would indeed often result in settling the “ refer" the summons, and“ toindorse on the summons” the reasons action." This view appears to us to be wholly unpractical. It of his decision on a matter which will have then passed from his could only be properly done with the assistance of the counsel on memory. The proposed change seems a gratuitous one, practiwhom the burden of maintaining the case in court is to fall; and cally saving nothing in any case, and tending to multiply appeals it could only be properly done by them if they were as fully by not allowing time for reflection. instructed as they are at the trial. That in some particular actions As to judgment debtor summonses, it is proposed that the onus it might be useful is possible, though we believe the event would of showing the non-existence of means should be cast on the be a rare one; but to burden every action with this preliminary debtor. This seems reasonable ; though, as the debtor will application would be to add a new and expensive, and for the immediately discharge himself of that burden by swearing that most part wholly useless, charge to the costs of litigation.
he has no means, the effect will probably not be important. The The charge of shorthand notes also we cannot but regard as proposal to transfer the matter to the Bankruptcy Court must, we wholly unnecessary in the great majority of actions; and must think, stand over until we know more of what the Bankruptcy demur to the costs being increased by this charge, even in the Court of the future is to be. modified form in which it is recommended.
The committee so much approve of the system of official The proposal to admit specific facts is accepted by the commit- referees that they wish their number increased and their power tee as likely in many cases to save expense. It has a plausible augmented, and the arbitration business of the masters transappearance; but if any one accustomed to advise on evidence will ferred to them. We should have rather favoured the absorption consider with himself how this notice should be constructed, or of the official referees in the masters, increased in number, if how it should be accepted, so as to avoid the difficulty of requir- necessary to meet those duties. There is, it must be allowed, a ing or of giving too wide an admission, he will, we think, become pretentious and un businesslike character about the new tribunal sceptical as to the advantage to be derived from it, and still more which makes it compare unfavourably with others of older standas to the possibility of fairly working the costs which are to depend ing. Neither can we, as at present advised, accept the view that on its acceptance or rejection; while there is no difficulty in appeal on questions of fact should lie from the decisions proseeing that no step in the action will require greater care and nounced in compulsory references. The value of the procedure caution.
would be seriously diminished if matters which, because of their Some occasions of expense, however, the committee propose to nature, and as unfit for another form of trial, are sent to referabolish. Their proposal that an official certificate shall be evi- ence, should be open to be tried over again before a tribunal for dence of due registration would probably be a safe and useful which they have been already pronounced unfit. But on questions addition to the law of evidence; and the proposal that the parties of law it may be readily agreed there should be an appeal. may agree to take any portion of the evidence on affidavit only
With respect to the “third party" a somewhat crude recommay possibly be of some, thougb we should suppose of very limited, mendation is made, under which it is supposed that a third party advantage.
can be “held liable" in the original action. That such an idea On the important point of discovery the committee accept the
the committee accept the was originally entertained there is no doubt ; but it is equally recommendation that the party requiring it should pay for it
without doubt that except by consent no such “holding" can be in the first instance ; but they object to the restriction of interro
made or judgment entered. It may be that the third-party rules gatories or discovery by the discretion of a master, proposing
should be modified and extended according to the original design; however, with respect to discovery, to substitute for such a b
but the recommendation as it stands is illogical. restriction a limitation to be imposed by the party requiring the
Finally (and it is only in a somewhat hasty way that we can at discovery, who must state what are the points in relation to which I present deal with this report, which we may hereafter have opporhe requires it. We doubt the value or wisdom of this limi. | tunity of examining more fully) we must notice three recommentation: but we must admit that we share the reluctance of dations appended to the report (1) that proceedings under ord. 14, the committee to submit this most valuable instrument to r. 1, should be extended to actions for the recovery of land ; (2) the discretion of a master. The point is a difficult one.
| that the practice under the Bills of Exchange Act should be When interrogatories and discovery were first introduced into
restored, but limiting the time to eight days instead of twelve ; common law practice they were put under restraint and check.
and (3) that the long vacation should be reduced. All these It was found by practice, or thought to be found, that the opera- | recommendations appear to be of real practical utility. And great tion of this restraining power caused more delay and more costs
thanks are due from the profession to the committee for the care and than it was worth, and step by step this control has been lessened
ability with which they have discharged their difficult and tedious and discarded. To return to a discarded practice, the mischiefs of duty. which are, perhaps, forgotten, is always à doubtful and perilous step. The abuse of this part of procedure is, to a large extent, directly chargeable on the masters, who have forced interrogatories On Tuesday Mr. Justice Fry, on taking his seat, addressed Mr. John upon litigants by depriving them of the far simpler and cheaper Pearson, Q.C., the senior member of the bar present, to the following remedy of particulars. If that practice were relaxed, we believe
effoot:— "Mr. Pearson, -I think it right to make a statement in reference
to two cases which were bronght before me yesterday in obambers with the check imposed by the necessity of paying for answers and
reference to marriages with wards of court without the leave of the court, diseovery in the first instance would be sufficient to prevent the and, as is alleged, without consent of the guardians and relatives of the abuses that have been so much complained of.
wards. In each case I found it my painful duty to commit to prison for With reference to chamber practice, the committee have
contempt of court the man who had gone through the ceremony of marriage elaborated a most carefully-drawn and practical series of recom
with the ward, and in each cago I found so much culpable negligence on
the part of the relatives and guardians who had permitted these marriages mendations, which are too detailed to admit of notice here, but
to be possible, that, in addition to the inquiry as to the validity of each which are evidently the result of an intimate acquaintance with marriage, I have directed an inquiry to be made as to the complicity (if the causes of expense, delay, and inconvenience. We may notice, any) of the guardians and relatives in bringing about these marriages. however, that they accept the principle of assigning each action
The cases were properly brought before me in chambers in private, but I to a particular master.
was so much struck by the oiroumstance of two such cases being brought
before me on one day, that I have thought it right to make this pablio Their mode of dealing with summonses (which they rightly, as
statement in reference to them, in order that people may understand the we think, retain against the opinion of a “considerable minority," grave nature of the offence committed in marrying or bringing about a who would substitute “notices,” to be drawn up altogether at the marriage with a ward of this court without its consent. -Mr. Pearson : In discretion of the parties) strikes us as not altogether happy. As
reference to the statement which your lordship has been pleased to make,
may I verture to ask whether the marriages were by banns or by licence to the moulding of the summons within the limits they prescribe,
| His lordship : In one case by bands, in the other by licence.--Mr. Pearson : it is done every day, and it is altogether unnecessary to provide In my experience in tbe worst cases of this kind the parties always resort for it by a rule; and as to the appeal, which, they propose, shall to marriage by bands.
this law, and the alterations which have been made therein, and parSOME POINTS FOR CONSIDERATION AS
ticularly the inroads in the application of the law which were made by
the Bankruptcy Act, 1869, and the Bills of Sale Act, 1878. The first TO THIS YEAR'S BANKRUPTCY BILL.
statuto on the subject was 21 Jac. 1, c. 19, 8. 11, which provision was, II.
with slight alterations, re-enacted by 6 Geo. 4, c. 16, s. 72, and the pro
vision of the last mentioned Act was repeated in section 125 of the Act One of the most important questions with regard to bankruptcy law at
of 1849, with an exception as to ships. The wording of that section is the present time is the effect which section 20 of the Bills of Sale Act,
as follows (omitting the proviso at the end containing the exception 1878, bas had upon the law of order and disposition as provided by the
before mentioned) :Bankruptcy Act, 1869, 8. 16, sub-section 5. This question has given rise to a great amount of discussion, and was given considerable promi
“That if any bankrupt at the time he beoomes bankrupt sball, by the nence to at the meeting of the Incorporated Law Society at Brighton in
consent and permission of the true owner thereof, have in his possession, October last. Apropos of the debate which took place at that meeting
order, or disposition any goode or obattels whereof he was reputed owner,
or whereof he had taken upon him the sale, alteration, or disposition as on the paper upon Bills of Sale, read by Mr. Saunders, of Birmingham,
owner, the court shall have power to order the same to be sold and disposed we took occasion (25 SOLICITORS' JOURNAL, p. 926) to make a suggestion
of for the benefit of the oreditors ander the bankraptoy." upon the subject, which we think it will not be out of place to repeat in these papers. Whilst agreeing to a limited extent with the majority of
The differences between the above section and the section in the statute the meeting as to the propriety of allowing a person possessed of personal of James are that in the former the words are“ possession, order, or dischattels, such as furniture owned by a lodging house keeper, machinery position," and in the latter they were “possession, order, and disposi. by a manufacturer, and similar cases, to raise money thereon by bill of tion"; and again in the former the words are " whereof he was sale, we suggested that the principle propounded by Mr. Saunders, and
reputed owner or whereof he had taken upon him the sale," &c.; others forming the minority, of rendering it illegal by enactment to grant whilst in the statute of James they were “whereof they shall be a bill of sale on personal effects might well be applied to stock-in-trade reputed owners and take upon them the sale,” &c. Up to the passand articles in which a debtor deals in the ordinary course of his trade,
ing of the Act of 1861 only traders were liable to be made bankrupt, and more particularly with regard to after-acquired property of that so that of course the law of order and disposition only applied to nature. A further consideration of the question confirms us in the views
them. But by that Act non-traders became liable to be made bankwe then expressed, and in the view that, without repealing or altering in any
rupt, and then the law of order and disposition applied equally to way section 20 of the Bills of Sale Act, the adoption of our suggestion
them. The object of the law originally was to preveut traders from would remedy the evils complained of as having been occasioned by that
obtaining false credit on the strength of owning property which section. We are aware that it would be introducing something of a novelty
did not belong to them, but which, being in their possession, in the law to recognize as it were only a sort of quasi ownership and not
order, and disposition, gave them the appearance of having means of an absolute ownership by a trader in his stock-in-trade, which would be
payment which they did not really possess. It was therefore thought to the practical effect of our suggestion. But we apprehend that will not be
be a just penalty to inflict upon the true owners of such property to deprive a very startling circumstance to the President of the Board of Trade if
them thereof for the benefit of the creditors, who might have been only the theory recommends itself to his judgment. It is to the stock-in. deceived into giving credit on the assumption that such property trade which a retail trader possesses that wholesale dealers look belonged to their debtor. After the passing of the Act of 1861 it was for payment of their accounts, and in regulating the amount of
felt that the application of the law to non-traders was unnecessary credit which they will give, and so long as a trader owes accounts
and wrong, as the same reasons did not apply in their case as in the in respect of his trading he ought to be prevented, as far as practi
case of traders, and accordingly by the Act of 1869 considerable alteracable, from dealing with that stock except in the ordinary way
tions and limitations in the law were made, as will be seen by comparing of his trade. This is no new principle with the Legislature, as is
so much of section 15 of that Act as relates to the question with section evidenced by section 11, sub-section 15, of the Debtors Act, 1869,
125 of the Act of 1849. Section 15 of the Act of 1869, so far as it deals which provides that a bankrupt or liquidating trader, within four months
with this question, is as follows :before his bankruptey or liquidation, pawning, pledging, or disposing of, “The property of the bankrupt divisible amongst his creditors .. . otherwise than in the ordinary way of his trade, any property which he shall comprise the following particulars (inter alia):has obtained on credit and has not paid for, shall be guilty of a misde. “ (5.) All goods and obattels being at the commencement of the bank. meanour, and be liable to imprisonment. Then why should it not be ruptoy in the possession, order, or disposition of the bankrupt, being a extended, as we have suggested, so as to effect, as we think it would, a
trader, by the consent and permission of the true owner, of which goods and beneficial result ? When a trader has to resort to the expedient of
chattels the bankrupt is reputed owner, or of which he has taken apon raising money by giving a bill of sale on his stock-in-trade, we may be
bimself the sale or disposition as owner; provided that things in action very sure that he is on his last legs, and our experience tells us that
other than debts due to him in the course of his trade or business shall not in ninety-nine per cent. of such cases the relief he thus obtains is only
be deemed goods and ohattels within the meaning of this clause." temporary, and does not long ward off the final crash, which, when it The alterations effected in the law by that section will be seen to be, does come, is all the more disastrous both to himself and his creditors, first, to limit the application of the law to bankrupt traders ; secondly, besides opening the door to a very great amount of fraud. The remedy we to vest the property in the trustee immediately upon his appointment suggested was that it should be provided that the giving of a bill of sale without any special order of court; and, thirdly, the exception of things by a trader over his stock-in-trade should constitute an act of bank- in action other than trade debts. Section 20 of the Bills of Sale Act, 1878, ruptcy ; but, on further reflection, we think this would not by itself be made a still more sweeping exception by excluding from the operation of sufficient, and we would therefore suggest, in addition, that where a bill section 15, sub-section 5, of the Bankruptcy Act, 1869, all chattels comof sale over stock-in-trade (and we would further include trade book- prised in any bill of sale duly registered under that Act. Now, in our debts) is given more than twelve months prior to adjudication, so that a opinion, by the passing of that section the only remaining value of the trustee's title would not relate back thereto, such bill of sale should be law of order and disposition was done away with, and it would be much void if the property included therein, or any part thereof, should be in better to entirely repeal the law than to continue it as at present. It the apparent possession (as defined by the Bills of Sale Act) of the always has been a doubtful question whether the law did not create much debtor at any time within, say, three months prior to the filing of a greater hardships than it remedied, and we have very little hesitation bankruptcy petition by or against him, 80 far as regards such property in saying that now its only effect is to create hardships. We will only as should remain in his apparent possession within such time. In fact, give one instance within our own knowledge as an example. At a sale in our opinion, the law on the subject could scarcely be made too by auction of machinery a gentleman purchased a portion for $200, stringent. The arguments made use of at the Brighton meeting of the and paid the amount to the auctioneer. For the convenience Iucorporated Law Society in opposition to the suggested repeal of section of the purchaser, the vendor allowed the machinery to remain 20 of the Bills of Sale Act were all founded on the policy of allowing on his premises until the purchaser could remove it, and persons possessed of personal estate, such as a lodging-house keeper it so remained for some days, when the vendor filed a petition for owning furniture, or a manufacturer owning machinery, to raise money liquidation. The trustee claimed the machinery as being in the debtor's thereon just as much as upon real estate; but, so far as appears by the reputed ownership, and the innocent purchaser not only lost the whole report, not one of the speakers ventured to include stock-in-trade owned of it, but was unable even to prove against the estate for his $200 and by a trader in his arguments. Now, we fully admit the principle with I get a dividend thereon. Now, this was a case of unmitigated hardship, regard to all kinds of personal effects other than stock-in-trade and as it is very certain that no creditor could ever have been deceived by trade book-debts, but we submit that it would be most beneficial the action of the purchaser into giving credit to the debtor, which he to protect the trading community by excepting that class of property would otherwise not have done. Of course it may be said that everyone from the power of the owners to incumber it by a bill of sale.
is presumed to know the law, and the purchaser ought to have known The consideration of section 20 of the Bills of Sale Act, 1878, brings better than to have left his machinery as he did. That is very true; but us to a much wider question, upon which, in our opinion, an alteration at least everyone has a right to presume and expect that the law will in the prosent law might very beneficially be mada-viz., the question of deal fairly and honestly between man and man; and when we find that it property of others in the order and disposition of a bankrupt at the has not that result, then, by all means, let it be altered. The policy of time of his bankruptcy passing to his trustee for the benefit of his the law might have been very correct in the time of James I., but in creditors. It is a matter of considerable interest to trace the history of these days it seems to us a little antiquated, very much bordering on the
absurd, and not at all suited to the requirements of the present age, why such a creditor should be allowed to add interest to his debt up to especially when we consider the numerous exceptions founded on the the declaration of a dividend as there is for the present rule requiring a various customs of different trades which the courts have from time to creditor whose debt is not due to deduct interest only from that time, time engrafted upon the rule.
instead of from the earlier date of the order of adjudication. Another point which we have often found to work great hardship is In concluding these papers, we have only further to say that if, in the the following:-A trader purchases gouds, which, however, are not remarks which we have had to make upon the Government proposals, delivered until after he fails. If they are in transit, and the seller is we have appeared in any way hypercritical, our only object has been to fortunate enough to learn of the failure before the goods are delivered, aid, as far as lies in our power, in bringing about a satisfactory settlement he can, of course, stop the delivery, but if, as often happens, he is in of a question which has now engaged the attention of the legal and ignorance of the failure for a day or two, the goods may be delivered commercial world for so long, and which is one of the utmost importeven after the failure, and the sellor must then rank on the estate for the ance to a commercial country such as ours. It appears to us that, in price of them, the goods becoming part of the insolvent's estate. This order to make any code of bankruptcy law work satisfactorily, more has always appeared to us a very unjust law, and whenever we have will depend upon a close attention to details than upon upon even the acted for debtors in such cases we have invariably advised them not to general principles which may be enacted. A clumsily-drawn Bill, howaccept delivery of the goods, as we consider it nothing short of a moral ever perfect the system which may be proposed by it, cannot help, but frand to do so under such circumstances. We think it would be a wise must prove a failure, on account of the uncertainty of the effect of its proand just law which would provide for the return of the goods in such vision, which can only be settled by expensive litigation, and also on cases to the sellers.
account of the numerous loopholes which it may afford to evade its We cannot conclude these suggestions without noting the points most salutary provisions, whilst a less perfect system carefully worked raised by a correspondent in these columns (ante, p. 94). Three points out in all its details, will be more likely to give general satisfaction ; and are mentioned by him, but we will only deal with the first of them, as this must be our excuse for entering so miuutely into the details of the we think the other two have been dealt with in the Government Bill- Government proposals. It is the interest of all that an Act should now viz., by clause 35, sub-clause 4, paragraph (6.), and sub-clause 6, upon be passed which will settle the question for some time to come; and which we commented in their proper place. The first point, however, is solicitors are as much concerned in the matter as any other class of the one of some importance, and, though wo do not agree with the proposal community. The vulgar prejudice which attributes to the profession & of “Prudens” to the full extent, we think the present law could very desire only to assist in legislation which will operate for the benefit of well be amended so as to do stricter justice between the creditors. its members, irrespective of the public good, the profession can well “Prudens " suggests that, with regard to the admission of proofs of debts afford to treat with the disdain it deserves, and, notwithstanding such upon bankrupts' estates, all commissions on loans should be disallowed, and calumny, join in assisting to bring about such a settlement as will enuro "there should be charged for all goods the lowest cash price, and allowed to the benefit of all. for all claims a fixed rate of interest-Bay simple interest at five per cent. - from the date of the loon or supply of goods, and disallow all extra interest.” We should strongly object to any interference with the present law as to bargains between a debtor and his creditors such as is suggested by “ Prudens," and we fail to see how any different law could be beneficially enacted to regulate such bargains in the event of the debtor subsequently becoming bankrupt. If this were done, we fear
SHERIFFS' IRREGULARITIES. it might lead to debtors who may have made, or think they have made,
[To the Editor of the Solicitors' Journal.] improvident bargains becoming bankrupt for the purpose of getting out of the consequences of their own bargaing, and the evil this would give! Sir,- Referring to the publicity which Mr. W. J. Fraser and I have rise to would, we think, be much greater than the fancied one raised by | given to the grave conduct of certain sheriffs and their officers, will you “Prudens." But we think that the latter part of rule 77 of the allow me to say that we have convened a meeting of the profession for Bankruptcy Rules, 1870, might be amended so as to act more equitably. Thursday next, at five o'clock, in one of the rooms of the Law InstituThe latter part of that rule is as follows :
tion? We think of inviting the sheriffs and under-cheriffs to hear what
we have to say, for the time has come when we must no longer beat about “Any creditor may prove for a debt not payable when the bankrupt. committed an act of bankruploy, and be entitled to prove such debt as if
ankrupt the bush.
FRANCIS K. MUNTON. the same was payable presently, and receive dividends equally with the
95a, Queen Victoria-street, E.C. other creditors, dedaoting only thereout & rebate of interest at the rate of five pounds per centum per annum, computed from the deolaration of a dividend to the time when the debt would bave become payable according
DELAYS IN THE CHANCERY CHAMBERS. to the terms upon which it was contraoted."
[To the Editor of the Solicitors' Journal.] We would suggest that in the case mentioned in the portion of the rule above quoted the rebate of interest should be computed from the
Sir,-Can nothing be done to remedy the delays in the chambers of the date of the order of adjudication, instead of from the declaration of a
judges of the Chancery Division ? My clerk has to-day applied for dividend, and for the following reasons. Take a case of a debt payable
appointments to proceed on inquiries in two simple administration cases. by instalments extending over several years. It is clear that the present
The earliest appointments obtainable were respectively seven and eight value of such a debt is very much less than the nominal amount. In
weeks hence. the event of the debtor's estate being divided without delay, such a
Such delay at this stage of a chancery action means that, however creditor would not of course be entitled to receive a dividend except upon
energetic counsel, solicitors, or the parties may be, the final determination the reduced amount after deducting a rebate of interest, but if the
of the case, quite apart from taxation of costs and division of the fund, dividend, instead of being declared at once should be delayed for some
must be deferred over the Long Vacation. A LONDON SOLICITOR. time until such creditor's debt should have become due, then that creditor would obtain his dividend upon the full nominal amount of his debt, which obviously would reduce the amount of dividend to be paid to the other creditors. To reduce the point to figures let us suppose the fol. In a recent address in memory of the late Mr. James D. Waddell, of lowing case :--A. becomes bankrupt, owing to the ordinary creditors £500, Georgia, Judge Blockley, according to the Albany Law Journal, said: “ Viewed and also owing to B. £1,000, payable at the expiration of four years. on the side of the affections, he embraced the legal profession tbinking it was His estate realizes after payment of all expenses £500 for division amongst Rachel, and next morning, ‘bebold it was Leah!'” his creditors. If divided forthwith it is clear that B. would have to
At the Bristol Assizes, on Saturday, on the trial of a man for embezzling a deduct from his proof of $1,000 a rebate of four years' interest at five sum of money, the judge expressed a strong opinion, in summing up, that the per cent., which would, we calculate, amount (in round figures) to $185. jury ought to aequit the prisoner. The jury, however, after some deliberation, That deducted from £1,000 would leave £815 only on which B. would said they could not agree. Lord Coleridge said he had told them what the be entitled to rank for dividend, making the total claims on which law on the subject was; but the jury etill hesitating, he added they must dividend would have to be calculated £1,315. £500 would pay a dividend retire and consider their verdict, remarking, “It is the first time I have ever upon that sum of about 79. 7 d. in the pound. On the other hand, if the known a jury not to take the law from a judge." The iury were then dividend were not declared until B.'s debt became due, the claims for
locked up. After they had left the court, there being other similar indiot. dividend would amount to £1,500, on which £500 would pay a dividend of ments against the prisoner, bis lordship stated that in them he should direct 63. 8d. in the pound only, so that the other creditors would thereby be pre.
acquittals, on the authority of the case of Reg. v. Negus. After some time the judiced to the extent of nearly 1s, in the pound. Now, why should a delay
jury were sent for, and, having said they were not agreed, were discharged in declaring a dividend make such a difference in the relative positions and
without giving a verdict. His lordship said, “I discharge you earlier than I
otherwise should have done in consequence of the most extraordinary message rights of the creditors ? We think it is generally, and that it ought to
I suppose a judge ever received from a jury. It was that you wanted to look be invariably, the policy of the bankruptcy law that the claims of the
for yourselves at the law case on which I directed you. It will be time creditors should be fixed as at the date of the bankruptcy. For instance,
enough to do that when it is settled that juries may determine the law for a creditor in respect of a debt carrying interest cannot prove for interest themselves. Now I discharge you, and on the ground that you will not beyond the date of the adjudication, Surely there is quite as much reason take the law to be as I have directed you that it is."
CASES OF THE WEEK.
DIVORCE ACTION—COSTS OF WIFE-SECURITY GIVEN BY HUSBAND.-In a case of McAlpin v. McAlpin, before the Court of Appeal on the 13th inst., the question whether the costs of the wife in a divorce action ought to be in
all cages absolutely limited to the amount of the security previously given by WILL-EXECUTION-ATTESTATION-ACKNOWLEDGMENT OF SIGNATURE BY
the husband, came again before the Court of Appeal. This was the old rule TESTATOR-WILLS ACT (7 WILL. 4 AND 1 Vict, C. 26), s. 9.-In a case of
in the Divorce Court, and it was always acted upon before the decision of the Blake v. Blake, before the Court of Appeal on the 14th inst., the question Court of Appeal in the recent case of Robertson i. Robertson (29 W. R. 880, arose what is necessary to constitute an acknowledgment by å testator of L. R. 6 P. D. 119). In that case it was beld that there ought not to be his signature to his will in the presence of the attesting witnesses, such as any such absolute limitation, though the judge would have a discretion as to to satisfy the requirements of section 9 of the Wills Act. The document the amount of costs to be allowed to the wife in each particular case. In propounded as the will of an alleged testatrix was signed by her, and was McAlpin v. McAlpin the action was tried before the decision of the Court attested by two witnesses. The attestation clause stated that it had been
of Appeal in Robertson v. Robertson, and Hannen, P., acted on the old rule, signed by ber in the presence of the attesting witnesses, but did not state limiting the wife's costs to the amount of the security which had been given that it bad been declared or acknowledged by her in their presence. Upon
cared or acknowledged by her in their presence. Upon by the husband. After the decision in Robertson v. Robertson the inatter was the evidence Hannen, P., came to the conclusion that the testatrix had
brought before him again, but he declined to alter his original order. The signed the document before the witnesses came into the room, and that Court of Appeal (JESSEL, M.R., and Brett and HOLKER, L.JJ.) held that he what afterwards took place in their presence did not amount to a valid had not exercised any discretion, but had simply persisted in following the acknowledgment by the testatrix of her signature. The signature was old rule, and they therefore gave the wife the whole of her taxed costs of the covered over with a piece of blotting-paper, and the witnesses did not see action.---SOLICITORS, Surr, Gribble, de Co. it, and had no opportunity of seeing it. If there was an acknowledgment at all, it consisted in the testatrix telling the witnesses that the document was her will. The Court of Appeal (JESSEL, M.R., and Brett and HOLKER, WILL_CONSTRUCTION-CHARGE OF DEBTS ON Real Estate-SALE BY L.JJ.) took the same view of the evidence. But it was argued that there ExecuTORS -Right OF PURCHASER TÓ INQUIRE AS TO EXISTENCE OF had been a valid acknowledgment of the signature, mainly on the authority Debts.-In a case of Tangueray-Willaume to Landau, before the Court of of Beckett . Howe (18 W. R. 75, L. R. 2 P. & D. 1), in which Lord Appeal on the 9th inst., the question arose whether a testator had, by his will, Penzance, professing to follow the previous decision of Sir c. Cresswell in created a charge for the payment of bis debts on his real estate, and there was Gwillim v. Gwillim (3 S. & T. 200), said that, “if the testator prodnces a the further question whether, on a sale of some of the real estate by the paper, and gives the witnesses to understand it is his will, and gets them to executors more than ten years after the testator's death, the purchaser was sign their names, that amounts to an acknowledgment of his signature, if entitled to inquire whether any debts of the testator still remained unpaid. The the court is satisfied that the signature of the testator was on the will at the testator appointed his wife and his son execatrix and executor of his will, and time. Whether that decision was right or wrong, I have not to determine. he directed them to pay all his just debts, funeral and testamentary expenses, It was founded on other cases. Provided the testator acknowledges the as soon as conveniently might be after his decease. And he gave and devise / paper to be bis will, and his signature is there at the time, it is sufficient." | to them, trustees of his will, all his real estates, to bold the same upto then, The Court of Appeal, bowever, held that this was not a correct statement of their heirs and assigns, according to the natures and qualities thereof respecte the law. JESSEL, M.R., said that he agreed with the statement of the law ively. And he bequeathed to them all his personal estate (except such part or contained in 1 Jarman on Wills (4th ed.), p. 108, “There is no sufficient parts thereof as he had thereby specifically disposed of) unto them, their acknowledgment unless the witnesses either saw or might have seen the executors, administrators, and assigns, according to the natures and qualities signature, not even though the testator should expressly declare that the thereof respectively. And the testator declared that his said real and personal paper to be attested by them is his will," adding that, in his estates were so devised and bequeathed upon the trusts thereinafter expressed opinion, it would not be sufficient if the testator said, “My signature is
uld not be sufficient if the testator said, “My signature is concerning the same-viz., upon trust to pay the rents and the annual income inside the will," unless the witnesses had an opportunity of seeing the tbereof unto, or permit the same to be received and taken by, bis wife duriag signature. He agreed with what was said by Dr. Lushington in Hudson v. her life, and from and after her decease to raise and pay out of his said real Parker (1 Robertson, 25), “How is it possible that the witnesses should and personal estates two legacies of £2,000 and $3,000 respectively. And, as swear that any signature was acknowledged unless they saw it? They mightswear to all the residue of his said real and personal estates, after the death of bis that the testator said he acknowledged a signature, but they could not depose wife, the testator gave, devised, and bequeathed the same unto his son, his to the fact that there was an existing sigoature to be acknowledged. It is heirs, executors, administrators, and assigns, according to the natures and quite true that acknowledgment may be expressed in any words wbich will qualities thereof respectively. Provided always that the testator's son should adequately convey that idea, if the signature be proved to have been then not be obliged to pay the two legacies at the end of twelve months from the existent-it would be quite sufficient to say "That is my will,' the signature date of the decease of the testator's wife, but should be at liberty to pay the being there and seen at the time, for such words do import an owning same legacies, or either of them, with interest, at any time or times most con. thereof." The argument in support of the proposition laid down in Beckett | venient to himself within two years next after the decease of the testator's v. Howe was founded on the notion that a statement by a testator to the wife. The testator died on the 13th of May, 1871. On the 14th of June, persons whom he asked to attest a document, that the document was his 1881, the widow and the son, as executors and devisees in trust of the testator, will, necessarily involved a statement that his signature was affixed to it. put up for sale by auction some real estate of the testator. After the delivery But that was not so, for, until the docun.ent had been attested, it was not a of an abstract of title to the purchaser he took two objections: (1) that the valid will. Till that had been done the document was only what be intended testator's will did not create a charge of bis debts on his real estate ; (2) that, to be his will. He might intend to sign it after the statement, just as considering the length of time which had elapsed since the death of the he intended it to be attested afterwards. The statement did not necessarily testator, there was a presumption tbat his debts had been paid, and that, involve the fact of previous signature. Lord Penzance did not therefore, if there was a charge of debts, the pnrchaser was entitled to inquire, intend to lay down the proposition himself, but intended only and the vendors were bound to answer, whether any debts of the testator still to follow what he supposed to be the decision in Gwillim v. Gwillim. remained un paid. The vendors relied on the will as creating & charge of When, however, that case was looked at, the Master of the Rolls thought that debts, and declined to answer the inquiry as to the existence of debts. The Sir C. Cresswell did not intend to decide anything of the kind. In that purchaser took out a summons under the Vendor and Purchaser Act of 1874 to case, if the signature of the testator was there at the time of the attestation, determine the matters in dispute. Kay, J. (25 SOLICITORS' JOURNAL, 875), it was impossible, under the circumstances, that the witnesses should not was inclined to think, on the authority of the decision of Lord Hatherley when bave had an opportunity of seeing it, and the argument turned on the ques. | Vice-Chancellor in Harris v. Walkins (Kay, 438), that there was no cbarge of tion whether the signature was or was not there at the time of the attestation, | debts created by the will, because the execatrix and executor took unequal His lordship could not find a word in the judgment of Sir C. Cresswell to l beneficial interests in the real estate devised to them, and be, therefore, beld show that be thought that, if the witnesses could not possibly bave seen the that the title was too doubtful to be forced on a purcbaser. He also intimat-d testator's signature, his saying to them, “This is my will," would be a suffi. an opinion differing from that of Lord Romilly, M.R., in Sabin v. Heape (8 cient acknowledgment. Tbe supposed doctrine, therefore, rested entirely on w. R. 120, 27 Beav. 553), in which it was held that, when an executor bad an the statement of Lord Penzance in Beckett ý. Howe of tbe effect of the implied power to sell real estate for the payment of the testator's debts, be decision in Gwillim v. Gwillim, and it had really no foundation at all. might sell twenty-six years after the testator's death, and refuse to answer the BRETT, L.J., said that he agreed with the reasoning of Dr. Lusbiogton in question whether there were any debts then existing or not. Kay, J., said Hudson v. Parker. He thought that the witnesses must see, or be able to that, of course, so long as that decision was not overruled, he was bound to see, that there was a signature, and that the testator must say something to follow it in a case exactly like it, though it seemed to him a little unreasonable them equivalent to saying, “ This is my signature." If they did not see the that, in & case of that kind, after so long a lapse of time, the purchaser should not be signature, or have an opportunity of seeing it, the testator's saying to them, allowed to ask the question. But it was not necessary for him to decide the point.
This is my will," or " My sigpatnre is there," would not be a sufficient | JESSEL, M.R., said that the law as to what would create a charge of debts by acknowledgment. His lordsbip was of opinion that this conclusion involved will on real estate was fairly stated by Fry, J., in Bailey v. Bailey (L, R. 12 a dissent from the views of both Sir C. Cresswell and Lord Penzance, for he Ch. D. 268, 273) thus :-" I do not think that there is any conflict in the thought that Sir C. Cresswell intended to decide in Gwillim v. Gwillim wbat authorities. They appear to me to come to this, that where there is a direcLord Penzance supposed that he had decided, and he felt the gr-atest tion that the executors shall pay the testator's debts, followed by a gift of all difficulty in differing from two such eminent judges. But he was bound to his real estate to them, either beneficially or on trust, all the debts will be act on his own view of the true construction of the statute, though, in so doing, payable out of all the estate so given to them. The same rule applies whether he felt much more doubt of the proprie:y of his own decision than he did the executors take the whole beneficial interest, as in Henvell v. Whitaker (3 of the impropriety of the decisions of Sir C. Cresswell and Lord Penzance. Russ. 343), or only a life interest, as in Finch v. Hattersley (3 Rass. 3450), HOLKER, L.J., said that the object of the statute was that the witnesses or no beneficial interest at all, as in Hartland v. Murrell (27 Beav. 204)." should be able to testify either to the signature of the document by the That being so, the only questions were whether there was any direction to the testator, or to the acknowledgment of the signature by him, and, apart from executors to pay the testator's debts, and whether there was a devise of the au'hority, good sense would seem to require that the acknowledgment should real estate to them. In the present case, there being a devise of the legal be an acknowledgment of something which was shown to them by the testator, estate to the executors, there was no distinction between a charge of debts, SOLICITORS, W. H. Orchard ; Lucas de Son.
I with the implied power of sale which followed from it, and a trust to ell for